New York State Court of Claims

New York State Court of Claims

O’KEEFFE v. THE STATE OF NEW YORK, #2007-010-057, Claim No. 109135


Synopsis


Snowplow operator’s conduct may have been negligent, but did not rise to the level of recklessness.

Case Information

UID:
2007-010-057
Claimant(s):
WILLIAM O’KEEFFE
1 1.Claim Nos. 109135 (O’Keeffe v State of New York) and 110753 (Lancer v State of New York) arise out of the same motor vehicle accident and have been joined for trial. By stipulation dated December 20, 2007, claimant Lancer has agreed to be bound by the determination regarding liability found in the O’Keeffe action. Accordingly, all references to claimant are to William O’Keeffe.
Claimant short name:
O’KEEFFE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Claim Nos. 109135 (O’Keeffe v State of New York) and 110753 (Lancer v State of New York) arise out of the same motor vehicle accident and have been joined for trial. By stipulation dated December 20, 2007, claimant Lancer has agreed to be bound by the determination regarding liability found in the O’Keeffe action. Accordingly, all references to claimant are to William O’Keeffe.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109135
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
CLARK, GAGLIARDI & MILLER, P.C.By: John Rand, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 12, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2007-010-058


Decision

Claimant seeks damages for injuries he sustained at approximately 9:15 a.m. on January 7, 2004 when he was driving a Lincoln Town Car owned by Anna’s Airport and Limousine Service northbound on Interstate 684 (I-684) near the Westchester/Putnam County line and collided with a snowplow truck operated by William Johnson, an employee of the New York State Department of Transportation (DOT). At the accident location, I-684 is a six-lane flat level road with three northbound lanes and three southbound lanes divided by a grassy median. It was a clear day and there was no snow or ice in the area of the accident. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Procedural History
Defendant appealed from an order of this Court dated March 22, 2006 which denied its cross-motion for summary judgment dismissing the claims (O’Keeffe v State of New York/Lancer v State of New York, Ct Cl, March 22, 2006, Ruderman, J., Claim Nos. 109135/110753, Motion Nos. M-70815; CM-71032/M-71031, UID 2006-010-007/2006-010-008). By Decision and Order, dated May 1, 2007, the Appellate Division, Second Department, affirmed the decision holding that: “[t]here exist triable issues of fact, including whether Johnson was ‘actually engaged in work on a highway’ at the time of the accident (Vehicle and Traffic Law §1103[b]; see Ibarra v Town of Huntington, 6 AD3d 391; cf Sullivan v Town of Vestal, 301 AD2d 824).”(O’Keeffe v State of New York, 40 AD3d 607).  
The Trial
The vehicle driven by claimant was equipped with a camera and a computer program that preserved a video of the 10 seconds before and after the accident (Ex. 2). The video was taken from one view looking forward from the car and another view showing the passenger section of the car. Additionally, still frames taken from the video were received into evidence (Exs. H, I). The video shows claimant traveling in the middle lane with the snowplow ahead, also in the middle lane. Claimant then moves into the left lane. As claimant was proceeding in the left lane and attempting to pass the snowplow, the accident occurred when the snowplow turned left from the middle lane and into a paved U-turn.

Robert Lichtenberger, the owner of Anna’s Limousine, testified that all of his company’s cars are equipped with a computer video program and a two-way camera directly behind the rearview mirror. One lens focuses on the road and the other on the interior of the vehicle. He arrived at the scene of the accident and advised the law enforcement personnel that the accident was recorded. He was given permission to use his laptop to retrieve the video which was subsequently transferred to a disc and received into evidence (Exs. 2, 34).

Claimant testified that in 2004, he was employed three days a week as a driver for Anna’s Limousine. On the other four days of the week, claimant was employed as a truck driver for a dry-cleaning company. On January 7, 2004, claimant was returning from the airport and traveling to the company garage. Claimant was in the middle lane and had just passed exit 8 near the turnaround on the highway, when he saw a large yellow snowplow truck ahead of him in the middle lane and traveling at a slower speed. Intending to pass the snowplow, claimant glanced over his shoulder into the left lane before signaling and moving into the left lane. He was three to four car lengths behind the snowplow at this point. Claimant then observed the snowplow’s left turn signal flashing. Claimant thought the snowplow was moving into the left lane rather than turning. When claimant was within one car length of the truck, he realized that the driver of the truck was making a U-turn. Claimant testified that his shoulders and head were square on the seat and headrest, indicating that he was looking forward (Ex. C), but by the time he realized that the truck was making a turn, it was too late for claimant to pass on the right. He maintained that he slowed down by taking his foot off the accelerator. Claimant swung to the left to avoid impact. Claimant testified that when the plow started to move, he jammed on the brakes but was not sure if he sounded his horn. The horn is not heard on the video and there were no skid marks at the scene. Claimant insisted that he was in the left lane before the truck started to move and that the two vehicles did not move into the left lane simultaneously. Claimant was aware that there was a video camera in the vehicle he was driving.

New York State Police Investigator Bryan S. Myles testified that he was the first law enforcement person to respond to the accident scene. He was joined by two sergeants from the State Police, EMT workers and DOT representatives. Myles spoke with both drivers and observed the damage to the vehicles. Photographs were taken by the State Police (Exs. 4, 6-7, 10-11, 13, 18, 26). Myles testified that Johnson reported that he was sanding icy spots on I-684 and had entered at exit 8 northbound. Johnson had changed lanes and was preparing to travel southbound to inspect for additional icy patches. Johnson maintained that once he was in the left lane, he activated his left turn signal to indicate his intention to enter the paved U-turn which he was authorized to use. There were two paved U-turns located north of the accident site and several unpaved U-turns.

Myles viewed the videotape and concluded that Johnson’s account was not completely consistent with what was depicted in the video. Myles did observe Johnson’s left signal flashing; however Myles noted that the automobile and the snowplow moved into the left lane at approximately the same time. Myles testified that it was reasonable for claimant and the snowplow to “pass simultaneously from the middle lane to the left lane” (T:75).[2] Myles also testified that while it is legal to pass on either the right or left side of a vehicle, the preferred course is to pass on the left. There was no horn sounded in the video and no skid marks on the road. According to Myles, if claimant had been traveling at a speed of 50 mph and then applied his brakes, there would have been skid marks (T:92-93). Myles’ accident report cited Johnson’s improper left turn as a contributing cause of the accident.

Myles testified that upon review of exhibit C, the still photographs taken from the video, at 3.25 seconds before impact, claimant was not completely in the left lane and was at a distance of a little more than 200 feet behind the snowplow. Myles opined that, at that juncture, a driver traveling at a reasonable speed had sufficient time to avoid the snowplow by passing it in the middle lane (T:98). Myles conceded that upon review of exhibit 2, from 3.5 to 2.5 seconds prior to impact starting at a distance of approximately 200 feet, claimant was looking to his left and not directly forward. At 2.0 seconds prior to impact, claimant returns to his position of looking directly forward.

Johnson, the snowplow driver, did not testify at trial due to his unavailability resulting from medical issues unrelated to this case. However, the testimony from his examination before trial was received into evidence (Ex. J).[3] Johnson had been employed by DOT for 13 years and in 2003 he was promoted to crew leader. Johnson testified that on January 7, 2004, he was dispatched to salt two patches on the northbound lanes of I-684 prior to the turnaround. He engaged his flashers while salting and then turned them off after he was finished. Johnson then proceeded north about one-half mile on I-684 with the intention of returning to the garage. He was traveling in the middle lane at a speed slower than the vehicles around him. He was aware that there were two to four vehicles behind him because two or three had passed him on the left.

Just prior to the accident, Johnson was traveling in the center lane at a speed of approximately 25 mph when he signaled left and turned from the center lane toward the turnaround (Ex. J, pp. 47-48). He testified that he looked in his rearview mirror and his left and right side mirrors before turning. He did not see any vehicles in his mirrors. The impact occurred in the turnaround. Upon review of the videotape, Johnson testified that it fairly and accurately depicted how the accident had occurred. Johnson was not issued any traffic tickets.

Michael McBride testified that he has been employed by DOT since 1983 and has been the Resident Engineer in the Northern Westchester Residency since 1997, which included responsibility for maintaining the highways, cleaning snow and ice, repairing potholes and guiderails. On January 7, 2004, Johnson was assigned to a “snow beat” as reflected in exhibit B (T:209). A beat is the route that a snowplow operator uses to perform his plowing and salting duties. Johnson’s beat covered the section of I-684 north of Route 35 in Katonah up to the Westchester/Putnam County border, both northbound and southbound (id.).

As evidenced by exhibit A, a “Snow and Ice Report,” on January 7, Johnson was dispatched to address icy conditions in the area of exit 8, Hardscrabble Road, “and he was sent out there to respond to conditions up there on 684 and the entire length of the beat” (T:210). McBride explained that by “entire length of the beat,” he meant that part of Johnson’s duties included salting any other ice spots he encountered in his travels and, if he could not reach an ice spot, then he was to call it into dispatch and continue to look for other hazards such as potholes, dead deer or broken guiderails (T:211).

McBride described the snowplow Johnson operated (Ex. G). It has four-way flashers which should be activated when the snowplow driver is salting, sanding or simply driving his beat (T:214). However, the flashers automatically disengage when the directional is activated (T:215). McBride conceded that the video does not show the flashers activated prior to the indicator light flashing (T:216). It does show the left flashing indicator signaling left (T:215).
Analysis
A critical issue in this case is whether the snowplow operator was “actually engaged in work on a highway” (Vehicle and Traffic Law §1103[b]) at the time of the accident. Resolution of this issue determines the applicable standard of care required of defendant. The Court finds that the evidence established that the snowplow operator was “actually engaged in work on a highway” (id.) at the time of the accident. Notably, just prior to the accident, the snowplow operator had just salted two areas in his beat and was continuing to navigate through his beat to look for any additional icy spots which required salting. Thus, even though the snowplow operator was not salting at the time of impact, he was still actually engaged in work on a highway (see Skolnick v Town of Hempstead, 278 AD2d 481 [a maintenance truck was involved in an accident when he was traveling the wrong way down a one-way street after having cleaned the storm drains; the Court held that he was actually engaged in hazardous operations at the time of the accident even though he was not actually involved in cleaning the drains at the moment of impact]; McLeod v State of New York, 8 Misc 3d 1009(A) [snowplow operator who had been engaged in snow removal raised his plow and wings in preparation of making a left turn; held to be actually engaged in work on a highway even though he was not plowing or salting at the moment of impact]; McDonald v State of New York, 176 Misc 2d 130 [snowplow operator who was attempting a U-turn while halfway through her plowing beat was actually engaged in work on a highway even though she was not actually plowing at the time of the accident]; Oliveira v City of Mt. Vernon, 209 Fed Appx 82, 83 [2nd Cir 2006] [statute protects vehicle operator navigating through his beat, regardless of the position of the snowplow’s blade]).

Therefore, in order for claimant to prevail on his claim, he must show that defendant’s driver acted with “reckless disregard for the safety of others” (see Primeau v Town of Amherst, 17 AD3d 1003, affd 5 NY3d 844; Riley v County of Broome, 95 NY2d 455, 460-65; Haist v Town of Newstead, 27 AD3d 1133). The recklessness standard requires more than a showing of lack of due care, which is associated with ordinary negligence (Notorangelo v State of New York, 240 AD2d 716, 717). It “requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (Saarinen v Kerr, 84 NY2d 494, 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]; see Szczerbiak v Pilat, 90 NY2d 553).

Upon consideration of all the evidence, including a review of the videotape, the still photographs taken from the videotape, and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that the snowplow operator was traveling at a speed of approximately 25 mph when he signaled left and attempted to make a U-turn from the center lane and collided with claimant’s vehicle in the left lane. Thus, the Court finds that the snowplow operator’s conduct did not rise to the level of recklessness (see Bliss v State of New York, 95 NY2d 911 [Court of Appeals found a triable issue as to whether the driver had acted recklessly where he pled guilty to unsafe backing down a narrow incline on a bridge with no rearview mirror on a heavily traveled interstate highway and had also violated several New York State Thruway Authority safety directives]; Primeau v Town of Amherst, 17 AD3d 1003, affd 5 NY3d 844, supra [snowplow operator was held not reckless where he failed to adequately brake before reaching stop sign and entered the intersection at a speed of 3 to 4 mph striking plaintiff’s vehicle]; Rockland Coaches Inc. v Town of Clarkstown, 49 AD3d 705 [snowplow operator who struck a bus failed to look in side mirrors immediately before changing lanes and attempting a U-turn was held to have a momentary lapse of judgment, but was not reckless]; Ring v State of New York, 8 AD3d 1057 [Court of Claims finding that snowplow operator was not reckless was fully supported by the record]; Sullivan v Town of Vestal, 301 AD2d 824, 825 [considering the slow speed of the work truck and that its various emergency hazard lights were activated, the Court found no viable contention of recklessness]; McDonald v State of New York, 176 Misc 2d 130, supra [snowplow operator attempting a U-turn failed to observe claimant’s van prior to impact was not reckless]).

ACCORDINGLY, LET JUDGMENTS BE ENTERED DISMISSING CLAIM NOS. 109135 AND 110753.


May 12, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims



[2]. References to the trial transcript are preceded by the letter “T.”
[3]. Exhibit 33, excerpts from Johnson’s examination before trial, was supplemented with the full examination before trial transcript received into evidence as exhibit J. Accordingly, defendant’s reference to exhibit 33 in its post-trial memorandum should be supplemented by exhibit J.